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Subject: Va. No By-Laws to Trump the Declaration or Articles
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11/04/2021 9:27 PM  
I live in a community association that the developer lost his control to appoint the Board members last year. At the annual meeting in November 2020, the members were provided a ballot to elect three Board members for the first time since the association was formed.
The community voted in three Board members and one new Board member was appointed by the developer (who reserves one seat on the Board) which formed the 5 member Board.
The covenants provided all of this, and it seemed as if it was all done the way the covenants stated. Except for an important matter, how long will the newly elected Board members serve? The ballot didn't say how long the terms were for, it only listed names of candidates. Even though the By-Laws I received were only a draft, they answered this question in great detail, but it was only a draft, was not signed, and not recorded. Our covenants state that if there is any discrepancy in the declaration the By-Laws would rule. The covenants also say, that the Articles of Incorporation will prevail if there is a discrepancy with the declaration. The Articles are an exact replica of the Declaration and Covenants, they are the same.
When there are no By-Laws to rely on after the Articles trump the declaration (covenants) and the covenants and Articles seem to produce conflict because there is no difference between the two, how are the terms for the newly elected and appointed Board members to be determined?
How could this impact the daily operations of the Board to manage the community if there is no clear guidance on matters that the By-laws could provide when such a situation would arise?


11/05/2021 5:07 AM  

I previously lived in Fairfax County.

There is no requirement that the Bylaws be recorded, as VA sees it as an internal document.

The order of precedence for Association documents is:

Declaration of Covenants, Conditions and Restrictions (CC&Rs)
Articles of Incorporation

As you are aware, if a lower document is in conflict with a higher document, then the higher document is the one the controls (must be complied with).

If your governing documents are silent on the terms for Directors, then you would need to look toward the applicable State statutes. The VA Property Owners' Association Act is silent on the terms of Directors.

However, most HOAs in VA are incorporated. If your association is incorporated, the Virginia Nonstock Corporation Act also applies.

Per that act, § 13.1-857. Terms of directors generally, if the Articles of incorporation are silent on the terms, "the term of office for a director shall be one year."

Hope this helps,



11/05/2021 7:20 AM  
Like Tim said one year.

I would check the articles of incorporation again, i know ours had a one liner for the director terms, it wasn’t easy to see at first glance.

Perhaps you can post them.


11/06/2021 9:56 AM  
For the archives, an discussion of the law in a state (Florida) that prohibits unreasonable amendments, from

“In determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness.”Holiday Pines Prop. Owners Ass’n v. Wetherington, 596 So. 2d 84, 87 (Fla. 4th DCA 1992). This court defined “reasonable” as “not arbitrary, capricious, or in bad faith.” Hollywood Towers Condo. Ass’n v. Hampton, 40 So. 3d 784, 787 (Fla. 4th DCA 2010). In other words, as we stated in Holiday Pines, the modification of restrictions cannot “destroy the general plan of development.” Holiday Pines, 596 So. 2d at 87 (citing Nelle v. Loch Haven Homeowners Ass’n, 413 So. 2d 28 (Fla. 1982)). Amendments which cause “the relationship of lot owners to each other and the right of individual control over one’s own property”to be altered are unenforceable. Id. at 88. Such an alteration is considered a “radical change of plans.” Id. Klinow v. Island Court at Boca W. Prop. Owners’ Ass’n, 64 So.3d 177, 180 (Fla. 4th DCA 2011) (footnote omitted). Klinow further defined “radical change” as “a change which would create an inconsistent scheme, or a deviation in benefit from that of the grantee to that of the grantor.” Id. (citing FlamingoRanch Estates, Inc. v. Sunshine Ranches Homeowners, Inc.,303 So. 2d 665, 666 (Fla. 4th DCA 1974)).

The next questions I would have for BernieJ's HOA is:

-- Does Virginia case law say similar?

-- Does the addition of this amenity (via amendment to the CCRs?) destroy the general plan of development?


11/07/2021 4:34 AM  

I think you posted this in the wrong thread.
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